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Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide David M

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Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide David M 338 CRIMINAL REPORTS 99 C.R. (6th) Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide David M. Tanovich* Every week in Canada, a woman is killed by a current or former intimate partner.1 It is a serious systemic problem. To put it in perspective, the number of women killed by their intimate partners in 2011 was roughly comparable to the number of gang-related homicides.2 Many, if not most, of these cases involve intimate femicide, a term used to give effect to the gendered nature of the crime. As Rosemary Gartner, Myrna Daw- son and Maria Crawford observe, “. intimate femicide is a phenome- non distinct in important ways both from the killing of men by their inti- mate partners and from non-lethal violence against women; and, hence, . it requires analysis in its own right.”3 They further observe that: . these killings reflect important dimensions of sexual stratifica- tion, such as power differences in intimate relations and the construc- tion of women as sexual objects generally, and as sexual property in *Faculty of Law, University of Windsor 1See Isabel Grant, “Intimate Femicide: A Study of Sentencing Trends For Men Who Kill Their Intimate Partners” (2010), 47 Alta L Rev 779 at 779 (“[a]pproximately 60 women in Canada are killed each year by their intimate (or former intimate) partners”) (emphasis added) [Grant, “Intimate Femicide”]. See further, Joanne Birenbaum and Isabel Grant, “Taking Threats Seriously: Section 264.1 and Threats as a Form of Domestic Violence” (2012), 59 CLQ 206 at 206–207 (“[in] Canada, a woman is killed by her intimate partner or former intimate partner every six days”) (emphasis added). 2There were 76 women killed by their current or former intimate partners and 95 gang-related homicides in 2011. See Statistics Canada, “Homicide in Canada, 2011” The Daily (December 4, 2012), online: <http://www.statcan.gc.ca/daily- quotidien/121204/dq121204a-eng.pdf>. According to the report, “[t]he rate of intimate partner homicides committed against females increased by 19% in 2011, the third increase in four years. However, the rate for male victims de- clined by almost 50%, reaching its lowest point since data collection began in 1961.” 3“Women Killing: Intimate Femicide in Ontario, 1974–1994” (1998) 26:3/4 Re- sources for Feminist Research 151 at 153. Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide 339 particular contexts. Intimate femicide — indeed, probably most femi- cide — is not simply violence against a person who happens to be female. It is violence that occurs and takes particular forms because its target is a woman, a woman who has been intimately involved with her killer.4 Other researchers have pointed out that some of the contributing factors that lead to intimate femicide include “possessiveness, . the husband accusing the wife of sexual infidelity, . her decision to end the rela- tionship, and/or by his desire to control her . .”5 It is very likely that R. v. Angelis6 is a case of intimate femicide. The most cogent indicators were that the accused had discovered that his wife had been having a long-term affair and that she wanted out of the mar- riage to be with him.7 During a violent confrontation, the accused called his wife a “bitch” and then caused her death. The evidence suggested that she likely asphyxiated either as a result of the accused putting his hand over his wife’s mouth (as described by their eight-year-old daughter) or sitting on top of her until she stopped breathing.8 The jury rejected his claim of self-defence and convicted the accused of second degree mur- der. The Court of Appeal ordered a new trial. The court held that the trial judge had erred in not leaving provocation with the jury despite the fact that the accused disavowed reliance on it. The Court of Appeal also held that the trial judge erred in instructing the jury that it could infer intent from Angelis’ failure to attempt to save his wife once he discovered she was unconscious. It is the latter issue which is the focus of this comment. It begins with a discussion of the process of inductive reasoning which is used to assess the probative value of post-offence conduct in any given case. It then considers the Court of Appeal’s treatment of the accused’s post-offence conduct taking into account the leading precedent of R. v. White.9 The 4Ibid. at 166. 5See Geris Serran & Philip Firestone, “Intimate Partner Homicide: A Review of the Male Proprietariness and Self-Defense Theories” (2004), 9 Aggression and Violent Behavior 1 at 12. 62013 ONCA 70 (Ont. C.A.), reported above at p. 315 [Angelis]. 7Ibid., at para. 9. See further the discussion below at notes 39–40. 8Angelis, supra note 6 at para. 20. 9[2011] 1 S.C.R. 433, 82 C.R. (6th) 11 (S.C.C.) [White]. 340 CRIMINAL REPORTS 99 C.R. (6th) piece concludes with a consideration of what the common law has taught us about the indicators of intimate femicide and how that was relevant in engaging in inductive reasoning in this case. The Nature of Inductive Reasoning Although rarely articulated or critically assessed, the law of evidence re- lies on the process of inductive reasoning as the fuel that runs its engine. When, for example, we determine the relevance and probative value of evidence, draw inferences from circumstantial evidence,10 or assess credibility,11 there is often an inferential gap that needs to be filled in order to rationally permit the decision maker or fact finder to do its job.12 To fill that inferential gap we often look to logic, common sense and experience to generate generalizations about human behaviour.13 We then draw a relevant conclusion based on the proven facts and the gener- alization. This process is known as inductive reasoning. In R. v. Munoz,14 one of the few decisions to explore inductive reason- ing, Justice Ducharme described the process as follows: While the jurisprudence is replete with references to the drawing of “reasonable inferences”, there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from 10See, for example, R. v. Quan, 2011 ONCJ 194 (Ont. C.J.). 11See, for example, R. v. Batte (2000), 34 C.R. (5th) 197, 145 C.C.C. (3d) 449 (Ont. C.A.) where Justice Doherty held (at para. 120) that “[j]uries are told to use their common sense and combined life experience in assessing credibility.” 12For example, as noted in R. v. Arcuri, [2001] 2 S.C.R. 828, 44 C.R. (5th) 213 (S.C.C.), “[w]ith circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established . .” (at para. 23). 13See the discussion in Hill, Tanovich & Strezos, McWiliams Canadian Crimi- nal Law, 4th ed. (Toronto: Thomson Reuters, 2012) at 28-43–28-49. 14(2006), 38 C.R. (6th) 376, 205 C.C.C. (3d) 70 (Ont. S.C.J.). Angelis: Inductive Reasoning, Post-Offence Conduct and Intimate Femicide 341 an interpretation of that evidence derived from experience. Conse- quently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity.15 Similarly, in R. v. McNair,16 it was further observed that: An inference involves the formation of a conclusion either from in- duction or deduction. In deductive logic an argument is valid if it is impossible for the premises to be true and the conclusion false. Deductive reasoning is “closed”. A conclusion is either valid or not valid. There is no room for compromise in Mr. Spock’s cold deduc- tive Vulcan logic. Inductive reasoning . relies for its operation on a level of apprecia- tion and understanding of the paradox inherent in the predictability and unpredictability of events. It goes from what is known to form conclusions about the unknown. The premises of the argument show some degree of inductive probability toward the conclusion but they do not entail the conclusion as in a deductive argument. Inductions are open. There are many conclusions that can reasonably be deter- mined from the same premises. ... Using [inductive reasoning] . reasonable people may reach different conclusions. There are no precise rules setting out what may be inferred by the process of induction from something else. Shared knowledge, experience or common sense come into play. Sometimes it “makes sense” to conclude with a practical degree of probability that a conclusion follows from certain premises. Some- times the distance from premises to conclusion is so great the degree of probability is minimal. The process of going from premises to conclusion, in this context at least, should not be based on intuition but on factors that can be articulated and related reasonably to the conclusion.17 The challenge for the adversarial process is to enhance the accuracy of inductive reasoning as much as is reasonably possible. This is why social context evidence is so important. Understanding the relevant social con- text ensures that the generalizations relied upon are reasonably reliable 15Ibid.
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